Mathuhle v Health Professions Council of South Africa and Others (28940/2018) [2020] ZAGPPHC 226 (11 May 2020)

THE HIGH COURT OF SOUTH AFRICA, GAUTENG DIVISION

JUDGMENT

Not Reportable

Case No: 28940/2018

In the matter between:

M A MATHUHLE

APPLICANT

[Ref: RAFA/00924/2017 /MOH]

and

THE HEALTH PROFESSIONS COUNCIL OF

FIRST RESPONDENT

SOUTH AFRICA

THE REGISTRAR OF THE HEALTH PROFESSIONS SECOND RESPONDENT

COUNCIL OF SOUTH AFRICA

THE ROAD ACCIDENT FUND APPEAL TRIBUNAL THIRD RESPONDENT

THE ROAD ACCIDENT FUND

FOURTH RESPONDENT

Neutral citation: Mathuhle v The Health Professions Council of South Africa and Others (28940/2018 ) [2020] ZASCA (11 May 2020)

Coram: Hughes J

Heard: 3 March 2020

Delivered: 11 May 2020

Summary: Administrative - review decision of Appeal Tribunal - Regulation 3 of Road Accident Fund Act - section 6 of PAJA - the decision maker must give adequate and sensible reasons for a decision - no grounds to order that injuries are not serious if reasons are inadequate and nonsensical.

ORDER

(a) The decision of the third respondent dated 20 September 2017 is reviewed and set aside.

(b) The second respondent is directed to appoint a new Appeal Tribunal to determine the dispute.

(c) The first respondent is ordered to pay the costs of the review application.

Hughes J

[1] The applicant in this opposed application seeks to review the decision of the Road Accident Fund (RAF) which rejected his RAF4 Form by declaring that the injuries he sustained were not serious injuries as envisaged by section 17(1) and 17(1)(a), read with Regulation 3 of the Road Accident Fund Act 56 of 1996 (RAF Act).

[2] The order sought by the applicant is along the following lines:

(a) Reviewing and setting aside the decision of the Road Accident Fund Tribunal of 20 September 2017 which declared the injuries sustained by the applicant as non-serious in terms of section 17(1A) of the Act and its regulations;

(b) That the registrar of the Health Professional Council direct that a new Appeal Tribunal be appointed to determine whether the Applicant's injuries are serious by reconsideration of all the medical records;

(c) That the applicant be permitted to submit further evidence, if she so wished, at the Appeal Tribunal hearing and be present at said hearing; and

(d) The Health Professions Council of South Africa be ordered to pay the costs of this review application.

[3] This review is brought in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), specifically section 6(2) (d), 6(2) (e) (ii) and 6(2) (e) (vi). In that the decision taken by the RAF was influenced by an error of law or irrelevant considerations were taken to account and relevant considerations were not taken into account in

making the decision. Lastly, the said decision taken is one that is arbitrary and not procedurally fair.

[4] On 22 November 2014 the applicant was involved in a collision and as a result she claimed compensation for non-pecuniary loss from the RAF. In terms of section 17 of the RAF Act the applicant submitted a RAF4

form completed on 5 March 2015 by a general medical practitioner, Dr Paul Mengein order to substantiate her claim. The RAF4 form indicates (the American Medical Associations Guide to the evaluation of permanent impairment (AMA)) rating and/or whether the injury

sustained is serious or not in accordance with (AMA). The tests in determining the impairment rating is two­ fold, the one known as the whole body impairment analysis and the second the narrative test. On 18 May 2015 the RAF rejected the applicant's RAF4 form.

[5] In his report Dr Menge stated that the applicant reported that she was transported to the hospital in an unconscious state. She re-gained consciousness in the ward and was hospitalised for three days. The doctor records that the applicant had dislocated her right elbow and sustained a haematoma on her left facial bone (a black eye). The treatment administered was a reduction of her left elbow under general anaesthesia whence after she had to wear a back slab for a month.

[6] By completion of the RAF5 Form, the applicant declared a dispute as regards the RAF's rejection above. The Registrar of the Health Professional Council appointed an Appeal Tribunal in terms of Regulation 3(8) to deal with the dispute. The Tribunal consisted of the following medical experts: two orthopaedic surgeons, Dr S K Mafeelane and Professor M Ngcelwane; a specialist neurosurgeon Dr J R Ouma and a doctor in occupational medicine, Dr N Mabuya.

[7] The matter was scheduled to be considered by the Tribunal on 20 September 2017. However, prior to deliberations, on 29 August 2017, the applicant submitted further medical-reports from a general practitioner Dr J J Schutte, an occupational therapist, Elreen Visser and an orthopaedic surgeon Dr Oelofse. On 17 November 2017 the Health Professions Council of South Africa (HPCSA) informed the applicant's attorney that the injuries she had sustained were not classified as serious injuries. This is the decision which is the subject of this review.

[8] Dr Oelofse, the only orthopaedic surgeon on board, concluded that in terms of the serious narrative test the injury did not result in a 30% Whole Person Impairment and is not listed as a non-serious injury in the AMA Guides.' Further in his report he states that after consulting with the applicant he found that her injury was one that

was a serious long-term impairment and would result in loss of body function. In addition, the damage to the applicant was permanent and could deteriorate with time. Notably prescribes anti-inflammatory, analgesic and local steroid treatment together with physiotherapy. If this fails to work out, then he opines that 'a possibility of 30% chance that the degeneration in her left elbow will reach end-stage osteo-arthritis.' Further, that if the later occurs she would then require a total elbow replacement.

[9] The first respondent (HPCSA) advanced the following reasons for its decision:

(a) That the applicant sustained a dislocation of the right elbow;

(b) Dr Oelofse, the only orthopaedic who examined the applicant had rated her pain as 8/10;

(c) As regards the narrative test he gave her a 5.1 and stated that she had reduced range of movement around the right elbow, she is seriously injured and would possibly require a total elbow replacement;

(d) Both Dr Menge and Dr Schutte independently awarded the applicant a 5.1 and Ms Visser stated that the applicant who was right handed had sustained a 'severe right handed problem and can only do sedentary work';

(e) Lastly, that the elbow injury which was reduced in casualty had left the applicant with full range of movement and was a non-series injury.

[10] It is trite that when dealing with a review one looks at how the decision was reached or was one examines the conduct of the proceedings in reaching that decision and not the decision itself. Thus, in determining whether a gross irregularity was committed in making the decision the focus is on the reasons provided by the decision maker and not the decision itself.[1]

[11] The findings of the Tribunal were that the injury was not a 'serious injury'. To determine if an injury is serious the regulations dictated that when an injury is assessed, it should fall within the AMA guide as an injury that constitutes 30% impairment of the whole body or if not, on the narrative test approach the injury constitutes a serious injury if its effects are of long term impairment.[2]

[12] The applicant in her heads of argument raises only one issue of plausible interest in this review application. Notably, this was raised in the heads of argument and not as a ground upon which the review was sought. To this end, the applicant contends that the basis upon which the decision was taken by the tribunal is inadequate and nonsensical.

In addition, in the respondent's founding papers it highlights, and correctly so I might add, that the crux of the applicant's case is that the decision of the Tribunal merely gives an overall view of the applicant's injuries and does not take into account the negative impact that the injuries have had on the applicant especially so with regards to her productivity and employment.

[13] It is prudent to restate that in a review application, it is imperative that the decision maker provides reasons for the decision reached. Hence, when considering if the administrative action was fair one has to have adequate reasons from the decision maker. The decision maker has to be accountable to the individual whose rights are being affected by the decision. Having provided such a decision the next aspect to tick off is whether the reasons advanced for the decision are based on facts adequate to inform the affected party[3].

[14] On my examination of the decision I find that there are clearly contradictions set out in the reasons advanced for the decision made. Hence, the reasons don't make sense and thus qualify as being inadequate for the decision made.

[15] This is illustrated by the fact that though the Tribunal acknowledges that; (b)Dr Oelofse, the only orthopaedic who examined the applicant had rated her pain as 8/10;(c) As regards the narrative test he gave her a 5.1 and stated that she had reduced range of movement around the right elbow, she is seriously injured and would possibly require a total elbow replacement;(d) Both Dr Menge and Dr Schutte independently awarded the applicant a 5.1 and Ms Visser stated that the applicant who was right handed had sustained a 'severe right handed problem and can only do sedentary work', but still goes on to

conclude that the applicant's injuries are not serious injuries. This in my view results in the conclusion not tied up with the assessment made, hence thus constitutes a gross irregularity.

[16] Makgoro J in Koyabe v Minister for Home Affairs[4] stated that it was important for the decision maker to provide reasons as it assists those parties whose rights have been affected

by the decision to proceed with a meaningful review and attain the best prospects of overturning the adverse finding. As stated:

'[60] Section 33 (2) of the Constitution provides a right to written reasons to those whose rights have been adversely affected by administrative action. Indeed PAJA, which was enacted to give effect to this and other administrative justive rights, states in its preamble that part of the purpose of giving effect to these rights is to-

'create a culture of accountability, openness and transparency in the public administration or in the exercise of a public power or the performance of a public function... '

[63] Although the reasons must be sufficient, they need not be specified in minute detail, nor is it necessary to show how every relevant fact weighed in the ultimate finding. What constitutes adequate reasons will therefore vary, depending on the circumstances of the particular case. Ordinarily, reasons will be adequate if a complainant can make out a reasonably substantial case from a ministerial review or an appeal.'

[17] In light of the dicta above and on the facts of this case, the applicant is entitled to have the decision of the Tribunal reviewed and set aside. Even though this is so, the applicant has failed in my view to make out a case that the decision was influenced by an error in law. That the decision maker failed to take into account some relevant consideration is evident from the contradictions pointed out supra and, that it was an arbitrary decision that results from the contradiction pointed out. The fact that the decision maker failed to take relevant facts into account especially from the only orthopaedic surgeon Dr Oelofse is fatal.

[18] Having concluded that the reasons are inadequate, contradictory and nonsensical I am of the view that there is no need to entertain the narrative test to grant the ancillary relief sought by declaring the injuries serious. The costs are to follow the result

[19] Consequently the following order is made:

(a) The decision of the third respondent dated 20 September 2017 is reviewed and set aside.

(b) The second respondent is directed to appoint a new Appeal Tribunal to determine the dispute.

(c) The first respondent is ordered to pay the costs of the review application.

W Hughes

Judge of the Gauteng High Court

Pretoria

APPEARANCES

For the Applicant:

Adv. M Jacobs

Instructed by:

VZLR INC.

For the 1st , 2nd , and 3rd Respondents: Adv. I Hlalethoa

Instructed by:

Maduka Attorneys

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) at (265.)

[2] Regulation 3(1)(b)(ii) and 3(1)(b)(iii) (aa-dd).

[3] Minister of Environmental Affairs & Tourism v Phambili Fisheries 2003 (6) SA 407 (SCA) at (40).

[4] Koyabe and Others v Minister for Home Affairs and Others 2010 (4) SA 32 7 (CC) at para 60 and 63